The justice system and the constitution

The United Kingdom has three separate legal systems; one each for England and Wales, Scotland and Northern Ireland. This reflects its historical origins and the fact that both Scotland and Ireland, and later Northern Ireland, retained their own legal systems and traditions under the Acts of Union 1707 and 1800. This website deals with the judiciary of England and Wales. We mention briefly the Tribunals Service, which extends to Scotland, and the Supreme Court of the United Kingdom, which has jurisdiction over the entire United Kingdom since it replaced the Judicial Committee of the House of Lords in October 2009.

The justice system is one of the three branches of the state. The other two branches are the executive, or the government, and the legislature, which is the two Houses of Parliament. In most democracies these three branches of the state are separate from each other. They have roles and functions that are defined within written constitutions, preventing the concentration of power in any one branch and enabling each branch to serve as a check on the other two branches. This is known as separation of powers.

The United Kingdom, famously and almost uniquely, does not have a constitution that is contained in a written constitutional instrument. Its constitution is to be found in the statutes passed by Parliament and in the common law, the law developed over the centuries in the decisions of the courts. Only two other countries, Israel and New Zealand, are like the United Kingdom in not having a written constitutional instrument. These three countries differ in this way from almost all other countries. Such constitutional instruments, for instance that of the United States, which has one of the most well known written constitutions, often have a higher status than ordinary legislation and constitutional provisions can only be enacted and repealed by a special procedure that differs from the procedure for making and repealing ordinary legislation.

Our lack of a written constitution is one of the consequences of the way the United Kingdom and its political and legal institutions have evolved since 1066. Another consequence is that our institutions did not separate the functions and powers of the three different branches of the state, the executive, the legislature, and the judiciary.

For example, the government (or executive) is made up of MPs and peers who are also members of the legislature (the House of Commons and the House of Lords). In the United States by contrast, the President and members of the Cabinet, (the executive), are entirely separate from the legislature, (the Senate and the House of Representatives).

Historically, there are many other examples of this mixing of roles in the United Kingdom. Until the end of the 19th Century judges could be elected as MPs, and in some rare cases, judges such as the Lord Chief Justice, would serve as members of the Cabinet, and thus be members of the government. This has happened only once in the last 100 years when Lord Reading, appointed Lord Chief Justice in 1913, served in numerous executive positions, including as High Commissioner to Washington in 1917. Notably, until October 2009 our highest court was a committee of the House of Lords. Although since the last quarter of the nineteenth century only judges appointed as Lords of Appeal in Ordinary (“Law Lords”) and other peers who have held high judicial office have been able to take part in the work of the Committee, Law Lords continued to contribute to debates, in particular on proposals for legislation about the courts and the administration of justice.

The overlap between the judicial branch of the state with the other branches was for the most part brought to an end in the 19th Century. There was, however, one significant exception to this: the office of Lord Chancellor. The Lord Chancellor’s office is one of the oldest in the United Kingdom, originating according to some in Anglo-Saxon times, but with a formal history beginning in 1068 after the Norman Conquest. Over the centuries many famous figures have served as Lord Chancellor. They include; Thomas á Becket, Cardinal Wolsey, Thomas More and Francis Bacon.

The Lord Chancellor’s office was the clearest example of how the British constitution did not separate and indeed mixed the three branches of the state. The Lord Chancellor was a senior Cabinet minister and therefore a member of the executive, a judge and the head of the judiciary of England and Wales, and a member of the legislature, indeed the person who presided over the deliberations of the House of Lords, in effect its Speaker. The one office involved and combined all three branches of government. This might have been acceptable when the office came into existence. Its continued existence in that form had however been questioned on a number of occasions in the last two hundred years. Most famously, it was criticised by Walter Bagehot in The English Constitution (1867) in the following terms:

“The whole office of the Lord Chancellor is a heap of anomalies. He is a judge, and it is contrary to obvious principle that any part of administration should be entrusted to a judge; it is of very grave moment that the administration of justice should be kept clear of any sinister temptations. Yet the Lord Chancellor, our chief judge, sits in the Cabinet, and makes party speeches in the Lords.”

Such concerns continued to be raised during the 20th Century. Although since the 1960s the Lord Chancellor sat as a judge less frequently, he continued to appoint judges. Moreover, the administrative responsibilities of the office for the court system increased significantly as a result of the reforms introduced by the Courts Act 1971 which transferred responsibility for many courts from cities and local authorities to central government and the Lord Chancellor.

The concerns were finally addressed in 2003 when the government proposed the abolition of the office of Lord Chancellor. The result of this clearer appreciation of the principles of the separation of powers in relation to judicial functions was, however, not abolition of the office but reform. The Constitutional Reform Act 2005 brought about a significant change in the nature of the office, essentially removing the Lord Chancellor’s position as a judge and head of the judiciary of England and Wales, and position as the Speaker of the House of Lords. The Lord Chancellor is now a Secretary of State and, like other Cabinet ministers, also a member of the legislature.

As part of the process which led to the Constitutional Reform Act, in January 2004 the Government and the judiciary entered into a “Concordat”. One essential purpose of this was to guarantee the continued independence of the judiciary. The Concordat also sets out which of the functions hitherto exercised by the Lord Chancellor were “judicial” and now the province of the judiciary, which were “administrative”, and remain the province of government, and which are “hybrid” and should be shared.

The 2005 Act did more than simply reform the office of Lord Chancellor. It made reference to two of the fundamental principles of our constitution, the rule of law and the independence of the judiciary. While the judiciary’s independence has long been an issue that has been referred to in statute, such as the Bill of Rights 1689 or the Act of Settlement 1701, this was the first time that the rule of law was specifically referred to in statute. Common understandings had grown up over the centuries about what these entailed, but in the light of the other changes made it was considered important for the Act to refer to them and thus to give them statutory force. Details of the key changes brought in by the Act include:

An explicit statutory duty on government ministers to uphold the independence of the judiciary. Ministers are specifically barred from trying to influence judicial decisions through any special access to judges. The Lord Chancellor also has a specific statutory duty to defend the judiciary’s independence. For example, this duty requires the Lord Chancellor to defend members of the judiciary carrying out their judicial functions from adverse comment by other members of the government. The starkest example of this arose as a consequence of the Sweeney case in June 2006. Craig Sweeney was sentenced to life imprisonment. The sentencing judge was required to set a minimum period of imprisonment before which the Parole Board could not consider his release on licence and, in accordance with statutory provisions and the sentencing guidelines the judge set a minimum period of five years and 108 days. Both the Home Secretary and a junior minister in the Department of Constitutional Affairs, criticised this. The DCA minister went so far as to say on Radio 4 that the sentence was wrong, although she later withdrew her comments. The Lord Chancellor spoke out against both his governmental colleagues and publicly defended the sentencing judge. In doing so he acted consistently with the duty imposed on the Lord Chancellor to defend the judiciary;

The transfer of the Lord Chancellor’s judicial functions to the Lord Chief Justice who became the President of the Courts of England and Wales. As a consequence of this transfer of responsibility the Lord Chief Justice gained responsibility for the training, guidance and deployment of Judges. He or she also has the responsibility for representing the views of the judiciary of England and Wales to Parliament and ministers;

The creation of a United Kingdom Supreme Court which is separate from and independent of the House of Lords. The new court has its own independent appointments system, staff, budget, and building in the former Middlesex Guildhall, opposite the Houses of Parliament;

The establishment of an independent Judicial Appointments Commission. The Commission has the effective responsibility for selecting judges, although formally the Commission makes recommendations to the Lord Chancellor. This seeks to ensure that, while merit remains the sole criterion for appointment, the appointments system is more open and transparent;

The establishment of the Judicial Appointments and Conduct Ombudsman, responsible for investigating and making recommendations concerning complaints about the judicial appointments process, and the handling of complaints about judicial conduct.

The changes to the constitutional position since 2003 have also had important practical consequences. These relate to the day-to-day leadership of the judiciary, the way judges are appointed and the way in which complaints are dealt with. These changes have helped to clarify the independence of the judiciary and are designed to enhance accountability, public confidence and the effectiveness of the work of the judiciary. The creation of a Ministry of Justice in 2007 which brought together responsibility for criminal justice, prisons, and penal policy (previously the Home Secretary’s responsibility) and responsibility for the courts service and legal aid (previously the Lord Chancellor’s responsibility) led to a further agreement between government and the judiciary in January 2008. This recognises that the judiciary has a distinct responsibility to deliver justice independently.